F. v Kennedy
| Jurisdiction | Scotland |
| Judgment Date | 29 October 1987 |
| Docket Number | No. 8. |
| Date | 29 October 1987 |
| Court | Court of Session (Inner House - Second Division) |
SECOND DIVISION.
Children and young persons—Grounds of referral to children's hearing—Application to sheriff for finding whether grounds established—Father of child tickling her on private parts—Whether "an offence involving bodily injury"—Social Work (Scotland) Act 1968 (cap. 49), secs. 32 (2) (d) and 421—Criminal Procedure (Scotland) Act 1975 (cap. 21), Sched. 1, paras. (a) and (d)2—Sexual Offences (Scotland) Act 1976 (cap. 67), sec. 5.3
Evidence—Sufficiency—Corroboration—Whether evidence of child's sister that father played tickling games which embarrassed her corroborated child's evidence that father tickled her on her private parts.
Statute—Construction—Statutory terms receiving judicial interpretation in two single judge causes—Presumption that terms used in same context in subsequent statute should bear similar interpretation—Whether status of decisions sufficient to found presumption.
A child was referred to a children's hearing on the ground that an offence in terms of Sched. 1 to the Criminal Procedure (Scotland) Act 1975 had been committed against her. As the child was too young to understand the grounds and the father did not accept them, the children's hearing directed the reporter to make application to the sheriff court in terms of sec. 42 of the Social Work (Scotland) Act 1968 for a finding as to whether the grounds of referral had been established. After hearing evidence the sheriff found the grounds established as the father had tickled or touched the child on her private parts on various occasions between 1st May and 13th June 1986, and had thus acted in a lewd, indecent and libidinous manner towards her, the child's evidence having been
corroborated by her sister who had described a tickling game played with both girls, and having been embarrassed and ashamed when talking of the game.The father appealed to the Court of Session contending that there was no corroboration by the sister, who had said that she had not seen her father use lewd, indecent and libidinous practices towards her sister and that he had not tickled her herself between the legs, and further, that the offence in question was applicable only to girls between the ages of 12 and 16. While this was accepted on behalf of the reporter, it was submitted that the father's conduct constituted an offence involving bodily injury in terms of para. 24(d) of Sched. 1 to the Criminal Procedure (Scotland) Act 1975, and that as that phrase had appeared in the Children Act 1908 and had been interpreted widely in two cases in the High Court of Justiciary, reliance could be placed on the presumption that where words interpreted judicially appeared in a subsequent Act, Parliament had used them in the sense attributed to them by such interpretation, and, further, that there would be alacuna in the 1968 Act if this wide interpretation were rejected.
Held (1) that the child's evidence was not sufficiently corroborated by that of her sister; (2) that, given the plain meaning of the phrase, it was not to be presumed that Parliament had given statutory authority to the broad construction adopted by two judges in cases under the earlier Act, as the strength of the presumption depended on the status and number of earlier decisions; and appealallowed.
Observed that there were several lacunae in the 1968 Act so far as sexual offences were concerned.
Frederick J. Kennedy, the Reporter to the children's panel for Strathclyde Region, referred a child to the panel. The reason for her referral was alleged to be that an offence mentioned in Sched. 1 of the Criminal Procedure (Scotland) Act 1975, namely lewd, indecent and libidinous practice or behaviour, or an offence involving bodily injury, had been committed on her person. F., the father of the child, failed to accept the ground of referral and the reporter thereafter applied to the sheriff of Glasgow and Strathkelvin at Glasgow for a finding as to whether or not the grounds of referral had been established. The sheriff found the grounds to be established.
The father applied to the sheriff to state a case for the opinion of the Court of Session under and in terms of sec. 50 of the Social Work (Scotland) Act 1968.
The cause came before the Second Division, comprising the Lord Justice-Clerk (Ross), Lord Dunpark and Lord McDonald, for a hearing thereon on 13th October 1987. Eo die, their Lordships madeavizandum.
At advising, on 29th October 1987:—
LORD JUSTICE-CLERK (Ross).—This appeal by stated case relates to an application by the reporter for Strathclyde Region under sec. 42 of the Social Work (Scotland) Act 1968 craving the sheriff to make a finding as to whether or not the grounds of referral, which were not accepted by the appellant, the father of the child, and which were not understood by the child, were established. The grounds of referral are in the following terms: "That an offence mentioned in Sched. 1 (d) to the Criminal Procedure (Scotland) Act 1975 has been committed in respect of her, namely, an offence of using lewd, indecent or libidinous practice or behaviour or an offence of bodily injury. This being grounds of referral in terms of sec. 32 (2) (d) of the Social Work (Scotland) Act 1968, as amended by para. 54 (b) of Sched. 3 to the Children Act 1975." In support of these grounds, it was stated that the child was born on 5th January 1979 and was a child in terms of the Act of 1968; that the child normally resided in family with her father; and that on various occasions, precise dates unknown, between January 1986 and 13th June 1986, within the family home, the child whilst in the care, custody and charge of the father, was the subject of lewd, indecent and libidinous practices. After sundry procedure, including the appointment of a safeguarder to the child, the sheriff heard evidence. Thereafter, he found the following facts admitted or proved:—"(1) During the period 1st May to 13th June 1986 the child normally resided in family with the appellant. From about the middle of 1985 the mother of the children was frequently absent from the matrimonial home and the appellant gave up his employment to look after the children. On occasion he had to help the child J. to clean herself as she was enuretic. (2) On various occasions between 1st May and 13th June 1986 the appellant tickled or touched the child on her private parts and so acted in a lewd, indecent or libidinous manner towards the child." The sheriff accordingly found the grounds of referral established in relation to the child J. The sheriff also heard an application relating to a sister of J. called K. As regards that application, the sheriff held that the ground of referral relating to K. had not been established. Against the sheriff's finding that the grounds of referral were established as regards J., the appellant has appealed by stated case under sec. 50 (1) of the Act of 1968.
In the stated case, the sheriff admits that he failed to observe and carry out the requirements of the proviso in rule 8 (4) of the Act of Sederunt (Social Work) (Sheriff Court Procedure Rules) 1971. His failure in this respect is no longer made a ground of appeal, but it must be emphasised that it is of importance that a sheriff carries out the procedure laid down in the rules, and in particular that fairness to an appellant requires a sheriff to obtemper the requirements of the proviso to rule 8 (4). In the present case, counsel for the appellant very frankly accepted that there had been no prejudice to the appellant in this case, but this may not always be so, and fairness can only be ensured if the provisions of the rules are strictly observed.
In the stated case, the sheriff has stated five questions of law for the opinion of the court. Counsel for the appellant accepted that question 1 should be answered in the affirmative. He made no submissions to the court on questions 4 and 5, and accordingly it is not necessary for the court to answer these questions at all. Counsel, however, addressed the court on questions 2 and 3. These questions are in the following terms:—"(2) Was I entitled to accept the evidence of the child K. as corroboration of her sister's evidence that the “tickling game” involved lewd and libidinous behaviour and on the part of the appellant? (3) On the facts found, was I entitled to find the grounds of referral established?"
Counsel for the appellant submitted that both these questions should be answered in the negative. In the stated case the sheriff has explained that he accepted the evidence of the child J. to the effect that the appellant had tickled her in various parts of the body, including her private parts. The sheriff also refers to evidence which had been given by two members of the staff at the school which J. attended, and he regarded their evidence as constituting evidence of de recentistatements which added to the credibility of the child's evidence. Counsel pointed out that there was no indication as to how long had elapsed after the alleged indecent behaviour before these statements had been made, but he did not dispute that in all the circumstances the learned sheriff was entitled to accept what the child J. said about the appellant's behaviour towards her.
The crucial question was whether the evidence of the child J. was corroborated. It was not disputed that the only source of corroboration could be the evidence of the other child K. The sheriff has set forth what K.'s evidence was. She was asked in terms whether she had seen the appellant use lewd and libidinous practices towards J. and she said she had not. She did not say that the appellant had tickled both herself and J., and although she did not specifically say that she saw him tickle J. between the legs, she made it plain by her attitude that she was embarrassed by and ashamed of the "tickling game", and she specifically stated that she thought the appellant was "naughty" to do it. The sheriff also states...
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In The Petition Of D.b. For Judicial Review Of A Medical Certificate Issued Under Gulation H2(3)of The Police Pensions Regulations 1987 And Answers Fo
...the term is used in the sense in which it has been judicially interpreted" [Jay v Johnstone [1893] 1QB 25 at 28, discussed in F v Kennedy 1988 SC 34 at 39-40 per Lord Justice-Clerk (Ross), at 45 per Lord Dunpark, at 47-48]. I am not persuaded that the presumption has application in the pres......